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Department of the Interior

Effective Date: 10/21/02

Series: Delegation

Part 212: Policy, Management and Budget

Chapter 13: Office of Hearings and Appeals

Originating Office: Office of Hearings and Appeals

13.1 General Authority. The Director, Office of Hearings and Appeals, is authorized to exercise, in accordance with existing policies, regulations, and procedures of the Department, all of the program management and administrative authorities contained in 212 DM 1 with respect to the hearings and appeals functions of the Department. The Director is also authorized to decide personally appeals to the Secretary that do not lie within the appellate review jurisdiction of an established Appeals Board and that are not specifically excepted in 212 DM 13.9.

13.2 Ad Hoc Boards of Appeals. The Director may establish ad hoc boards of appeal to decide cases that do not lie within the appellate review jurisdiction of an established Appeals Board, in lieu of deciding such cases personally, and may appoint personnel within the Office to serve on such boards.

13.3 Hearings Division.

A. Administrative Law Judges are authorized to conduct hearings in all cases required by law to be conducted pursuant to 5 U.S.C. ' 554 and in other cases arising within the Department.

B. Indian Probate Judges are authorized to conduct hearings and render decisions in Indian probate matters.

C. Administrative Judges are authorized to conduct hearings and render decisions not required by law to be conducted pursuant to 5 U.S.C. ' 554, including proceedings under the White Earth Reservation Land Settlement Act of 1985, 100 Stat. 61.

13.4 Interior Board of Contract Appeals. The Chair, Vice Chair, and member(s) of the Interior Board of Contract Appeals are authorized to exercise, pursuant to regulations published in the Federal Register, the authority granted to agency Boards of Contract Appeals by the Contract Disputes Act of 1978, 41 U.S.C. ' 601 et seq., to conduct hearings and render decisions in appeals from decisions, or the failure to issue timely decisions, by contracting officers of any bureau or office of the Department, wherever situated, or any field installation thereof. They are also authorized to conduct hearings and render decisions in contract cases that are not subject to the provisions of the Contract Disputes Act.

13.5 Interior Board of Indian Appeals. The Chief Administrative Judge and Administrative Judge(s) of the Interior Board of Indian Appeals are authorized to exercise, pursuant to regulations published in the Federal Register, the authority of the Secretary in deciding appeals from (a) administrative actions and decisions of officials of the Bureau of Indian Affairs (other than actions and decisions involving contracts) in cases involving determinations, findings, and orders protested as a violation of a right or privilege of the appellant under regulations in 25 CFR Part 2; (b) orders and decisions of Administrative Law Judges and Indian Probate Judges in Indian probate matters; (c) decisions of the Superintendent of the Osage Indian Agency on the validity of Osage Indian wills, pursuant to 25 CFR ' 17.14; (d) decisions of an administrative judge under the White Earth Reservation Land Settlement Act; and (e) historical accountings issued by the Office of Historical Trust Accounting. They are also authorized to decide other matters pertaining to Indians referred to the Board by the Secretary, the Assistant Secretary - Indian Affairs, or the Director, Office of Hearings and Appeals.

13.6 Interior Board of Land Appeals. The Chief Administrative Judge, Deputy Chief Administrative Judge, and Administrative Judges of the Interior Board of Land Appeals are authorized to exercise, pursuant to regulations published in the Federal Register, the authority of the Secretary in deciding appeals from decisions rendered by Departmental officials relating to (a) the use and disposition of public lands and their resources and the use and disposition of mineral resources in certain acquired lands of the United States and in the submerged lands of the Outer Continental Shelf; (b) land selections under the Alaska Native Claims Settlement Act, 43 U.S.C. ' 1601 et seq.; and (c) surface coal mining and reclamation operations under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. ' 1201 et seq.

13.7 Finality of Board Decisions.

A. Decisions of the Interior Board of Indian Appeals and the Interior Board of Land Appeals are final for the Department, except as provided in 212 DM 13.7B-C.

B. The Secretary reserves the right to exercise any power conferred upon him or her by law. Except with respect to cases governed by the Contract Disputes Act, which confers exclusive jurisdiction over such cases in the Board of Contract Appeals and the United States Court of Federal Claims, the authority reserved to the Secretary includes but is not limited to (1) the authority to take jurisdiction at any stage of any case before any employee or employees of the Department, including any Administrative Law Judge or Board of the Office, and render the final decision in the matter, after holding such hearing as may be required by law; and (2) the authority to review any decision of the Office or a Board or to direct the Office or a Board to reconsider a decision.

C. Except with respect to cases governed by the Contract Disputes Act, the Director may assume jurisdiction of or review any case before any Board of the Office and may direct reconsideration of any case by any Board of the Office.

13.8 Federal Register Documents. The Director is authorized to issue notices of proposed rulemaking and general notices pertaining to the functions assigned to the Office of Hearings and Appeals. Issuance of final rules for codification in the Code of Federal Regulations is reserved for Secretarial signature.

13.9 Limitations.

A. No member of an Appeals Board who has taken part or had any interest, directly or indirectly, in the letting or administration of a contract in dispute, or in the investigation or prosecution of a case prior to the time when the matter came under the jurisdiction of a Board, will participate, directly or indirectly, in the decision of the Board.

B. The authority conferred by other paragraphs of this chapter does not include authority with respect to appeals pertaining to administrative actions on Indian matters, appealed under 25 CFR Part 2, which are based solely upon discretionary authority of the Secretary; enrollment of Indians; estates involving the restricted property of Indians of the Five Civilized Tribes and Osage Indians; tort or irrigation claims; requests with respect to availability of official records and testimony of employees under 43 CFR Part 2; or decisions of the High Court of American Samoa.

C. The authority conferred by other paragraphs of this chapter does not include authority to overrule or modify final legal interpretations (M-Opinions) of the Solicitor which are binding on all Departmental offices and officials as provided in 209 DM 3.2A(11). If the Director believes that intervening statutes or judicial opinions may have affected an M-Opinion, the Director may so advise the Solicitor and request his or her guidance.

D. The authority conferred by other paragraphs of this chapter does not include the authority to review the merits of a biological opinion issued by the Fish and Wildlife Service under the Endangered Species Act, 16 U.S.C. ' 1531 et seq.

10/21/02 #3536

Replaces 3/16/92 #2937